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Transgender Legal Advisor

The Hate Crime Backlash:
Why It Makes No Sense

By Carolyn Woodward

Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at carolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.
Hello everyone. This month I'm going to depart a little from my usual format. This month is a commentary - well, all right, it's ranting pure and simple. The subject - Hate Crime Legislation. Two recent occurrences have brought this subject to my attention.

First - in a suprise move, California governor Pete Wilson recently signed into law Assembly Bill 1999, which amends the state hate crime laws to include gender. It is written in such a way that it should cover the transgendered as the definition includes perceived gender even if different from the victim's sex at birth.

The other event, of course, is the brutal murder of Matthew Shepard, which was widely reported in the national media and in TG Forum last week.

Let me start my ranting by stating something about myself. I'm a civil libertarian in that I believe the functions of government should be limited, and the rights of individuals as unlimited as possible. Those who usurp the right of others should be taken to task - and for that we have civil and criminal courts. Other than that, I tend to be on the conservative side. I listen to conservative talk radio, and after Matthew Shepard was killed the major topic of the day turned to hate crimes - and did I ever get an earful. I am in favor of hate crime legislation. My favorite local morning host was espousing the position that hate crime legislation was unnecessary, unwanted, and dangerous. Even more frightening is that the reasons are horribly naive - from a man who usually has well considered opinions. And I hear the same lame arguments against hate crime legislation everywhere I turn.

Before I turn to the arguments, let me make sure we all understand what I'm talking about. Hate crime legislation is that which imposes enhanced penalties against criminals whose motivation for attacking their victim is that the victim has certain characteristics which are inherent or constitutionally protected. Recently they include in the inherent category such things as race, national origin, sexual orientation, and gender. These are things about a person over which they have no control. A protected right which is included in hate crime legislation would be religion.

So what are the winning arguments which have me up in arms? Well, there was that whiny woman who came on and said we don't need hate crime laws - all crime is hate. Wake up lady!!!!! Most crime is the result of some combination of greed, laziness, opportunism, lack of conscience, desperation, and provoked anger (with provocation being sometimes legitimate, somethimes only perceived.). An habitual thief finds it easier to make his livelihood by taking from others than by an honest day's work. Drug dealers work in the realm of greed and lack of conscience. Hate criminals are those who attack others because they are black, or white, or Catholic, or gay, or TG. There is no other gain except to feed that unreasoning hatred or fear that is festering inside.

Next, we have the argument that all crime is reprehensible and all criminals should be punished equally. After all, I'm hearing, if a murderer is going to be put to death, what are they going to do if it is a hate crime - give him some extra voltage? Ha! Ha! Cute. Trite. Stupid and short-sighted. Not all murderers are put to death, and those who aren't should get extra time for a hate crime. Further, not all hate crimes result in death.

Special Rights

What about equal protection under the law? These people get special protection, or get "group rights" the rest of us don't have. Oh, really? If you are an average white male, who minds his own business and doesn't get involved in "fringe" activities, you will probably never be a hate crime victim. You probably can't even imagine being the victim of a beating - or getting killed because you are an average white male. Why, you can't help being who you are, what did you ever do to deserve being beaten? Well, I can't help being who I am, Matthew Shepard couldn't help being gay, and Martin Luther King, Jr. couldn't help being black. The latter two were killed over something they couldn't help. Special protection? I look at it as leveling the playing field a bit by threatening extra punishment for those who would prey on others because of things they can't help, or doing things they are entitled to do - such as exericise of religion. Perhaps it will deter that potential hate criminal. Perhaps not, but we can always hope. As for group rights - no, these laws protect individual human beings. Groups don't get attacked - individual human beings get attacked.

Some fear abuse - if someone beats up someone else in a bar fight, and that person turns out to be gay, then they face the hate crime enhancement. No, the statutes are clear that the motivation must be there. If a mugger hits a victim, knocks him out, takes his watch and wallet, and runs, it is not a hate crime because the victim was gay - it was a plain robbery. The criminal wanted money, and didn't care about his victim's sexual orientation - even if he knew it. The motive is not there for a hate crime. Motive is the issue, not that the victim just happened to fall into the statutory definition.

About Motive

Which brings us to the most naive argument yet.

I'm hearing people say, with a straight face, that motive has no place in the American justice system, and it never has! It is only actions which count. Hate crime statutes invite the "thought police." This makes me want to beat my head against the wall in frustration.

Motive, or intent, has always played a part in American jurisprudence - a major part. And thought police?? It is not illegal to hate someone. You can hate anyone you like, for whatever reason you want.

But if you beat them up, or kill them, your motives will be examined - and rightfully so. Let's look at some of the ways intent can be considered - a couple ought to suffice. On the punishment side first.

If a man, who has no criminal record, shoplifts food because his children are hungry and he is unemployed, what is likely to happen and why? He will be treated lightly, or may not even be prosecuted. Why? Because of his motivation. He has no criminal record, so the judge and prosecutor know he is not a habitual criminal, and his circumstances indicate he was motivated by desperation.

Contrast this with a person who steals from a store for fun, or because he wants something non- essential to life and can't afford it. That person's motivation will be examined, and he will be more severely punished than the man who stole to feed his family. How will they know this motivation? There may be a history of theft offenses. Often, the circumstance may indicate motivation. What was stolen, and by whom? How was it done? Was there some degree of sophistication?

Now to the other extreme. There would be no differentiation between murder and manslaughter were motive, intent, state of mind - call it what you will, not a factor.

Murder is the unlawful killing of a human being with malice aforethought. Malice is a state of mind. The definitions of malice use such terms as "malignant heart." Manslaughter is the unlawful killing of a human being without malice. Voluntary manslaughter involves a deliberate killing of a human being, but defines a killing done in such a state of rage that one's conscience is overridden.

The classic example is the husband who finds his wife in bed with another man and kills one or both in a rage. In each case, murder or manslaughter, an intentional killing is committed, but the state of mind of the killer makes all the difference. I think it is clear by now that the law DOES consider the motivation for an action - either in defining the crime or determining the punishment.

Hate crime laws do nothing more than recognize that there are victims of crime who are victims because of some characteristic they can't help, or some practice which is their right. By enhancing penalties, they attempt to discourage the criminal who is motivated by hatred, or by fear and the hatred it breeds. These laws are leveling factors, not special protections in that the protected persons run special risks. They are necessary in a society which truly seeks equality for all.

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